A RFRA Runs through It: Religious Freedom and the U.S. Code

Volume 56

Issue 1

Winter 1995

Article 11

1-1-1995

A RFRA Runs through It: Religious Freedom and

the U.S. Code

Michael Stokes Paulsen

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A RFRA RUNS THROUGH IT: RELIGIOUS

FREEDOM AND THE U.S. CODE

Michael Stokes Paulsen"

I. INTRODUCTION

Whether Democrats or Republicans are in power,

Govern-ment (with a big G) has an irrepressible institutional bias

against religious freedom claims. This is especially true where

the religious claimant seeks an exemption or accommodation

from usual government rules because of the unique conflict those

rules present for that individual's (or group's) exercise of religion.

Such free exercise claims are, to institutional Government,

an annoyance. They require Government to do something

differ-ent, perhaps even inconvenient. They are not always costless.

They present, to bureaucrats, inevitable slippery slopes that

threaten the programs they administer: what if everybody

want-ed an exemption? The slope is assumwant-ed to be a steep,

near-verti-cal cliff: everyone will concoct a religious belief entitling them to

exemption if we make the mistake of granting that first,

prece-dent-setting accommodation.

Religious freedom claims thus

require Government to sort out bona fide free exercise of religion

claims from false ones of simple resistance to bureaucracy-and

to do so without violating other constitutional principles

forbid-ding Government discrimination among religious beliefs or

Gov-ernment evaluation of the truth, worth, consistency, or

plausibil-ity of asserted religious beliefs.

This latter task is certainly not

t Copyright © 1995, Montana Law Review; Michael Stokes Paulsen.

* Associate Professor of Law, University of Minnesota Law School. The reader

should be warned that I was counsel for a coalition of amici religious organizations supporting Crystal Evangelical Free Church in the case of Christians v. Crystal

Evangelical Free Church, which is discussed at length in this article. The views

ex-pressed here are my own.

My thanks to Dean Rodney Smith and the members of the Montana Law

Review for their hospitality in putting together this symposium. My thanks to the symposium participants and to Tom Berg, for helpful comments on the draft version of this paper, and to Marguerite Spencer and Richard Murphy for research assis-tance.

1. Chip Lupu has put it well: "Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe.' Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of

Religion, 102 HARV. L. REV. 933, 947 (1989).

2. See Hernandez v. Commissioner, 490 U.S. 680, 695 (1989); Thomas v.

250

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easy or costless.

Far better then, the bureaucratic thinking goes, simply to reject all such claims. Thus, even before Employment Division v. Smith,3 the U.S. Department of Justice urged abandonment of the "compelling interest" standard of Sherbert v. Verner and subsequent cases as the test of when Government must grant religion-specific exemptions under the Free Exercise Clause of

the First Amendment.4 Even where the Department did not

forthrightly urge overturning the compelling interest test, it ar-gued that the Government had a compelling interest in virtually every imaginable application of a federal statute, regulation, or policy (or that a given area should be wholly exempt from the compelling interest standard).5

One would have thought that the Religious Freedom Resto-ration Act of 1993,6 affectionately known to its supporters as "RFRA" (pronounced "riffra"), would have changed all that. The compelling interest test had always been a somewhat tenden-tious inference (though I think a proper one) from the lean lan-guage of the Free Exercise Clause.7 _{But in the wake of the test's}

view Board, 450 U.S. 707, 714-16 (1981); United States v. Ballard, 322 U.S. 78,

87-88 (1944).

3. 494 U.S. 872 (1990).

4. Sherbert v. Verner, 374 U.S. 398 (1963) was the genesis of the compelling interest test in the Free Exercise Clause context, though the doctrinal formula-and the precise words of legal jargon that RFRA sought to recapture as a matter of stat-utory law--did not reach full bloom until Thomas v. Review Bd., 450 U.S. 707

(1981). The compelling interest test of Sherbert and subsequent cases requires (i) that

any government-created burden; on (ii) the claimant's exercise of sincerely-held re-ligious beliefs; may be justified only by (iii) a compelling governmental interest; (iv) accomplished by the least-restrictive means reasonably available. RFRA adopts this approach virtually verbatim. See infra text accompanying notes 80-104.

5. See, for example, the United States Government's position in the cases of Hernandez v. Commissioner, 490 U.S. 680 (1989); O'Lone v. Estate of Shabazz, 482

U.S. 342 (1987); Bowen v. Roy, 476 U.S. 693 (1986); Goldman v. Weinberger, 475 U.S. 503 (1986); Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Unites States v. Lee,

455 U.S. 252 (1982) and in its amicus brief in Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987). Many of these cases are discussed infra.

6. Pub. L. No. 103-141, 107 Stat. 1488-89; 42 U.S.C. § 2000bb (Supp. V 1993).

7. Professor Stephen Pepper has persuasively shown how the text of the Free Exercise Clause is fairly capable of conflicting interpretations on the issue of religion-specific exemptions from facially neutral laws. Stephen Pepper, Taking the Free

Exer-cise Clause Seriously, 1986 B.Y.U. L. REV. 299. I am persuaded by Professor Pepper's

analysis that the text of the Free Exercise Clause certainly permits the Sherbert reading. Indeed, I believe that the arguments he makes establish the Sherbert read-ing as the better one, unless one's analysis is driven by the sort of slippery-slope fears that animate Government's hostility to this reading. However, I would concede that the question is not free from doubt, as a textual matter.

Professor Michael McConnell has made a powerful historical case for the

repudiation (for the most part)' in Employment Division v. Smith, RFRA makes application of that test the explicit textual command of a sweeping, breathtaking new federal civil rights statute. One may not like the compelling interest test, but there it is in black and white:

[Section 2(b).1 The purposes of this Act are (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is sub-stantially burdened by government.

[Section 3(a) & (b). Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except [where] ... it dem-onstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling gov-ernmental interest.9

RFRA presents a number of difficult and important legal issues. Much early discussion has focused on the controversial question of RFRA's constitutionality as applied to trump laws enacted by state governments: What gives Congress power to

clusion that the original understanding of the Free Exercise Clause was that the clause would sometimes require exemptions from facially neutral and otherwise gen-erally applicable requirements of law, and that the compelling interest standard (or, at least, a compelling interest standard with real bite to the word "compelling") is a fairly good present-day approximation of the level of justification that the founding generation perceived would be necessary in order for the government to prevail in the face of a conflict with bona fide religious exercise. Michael W. McConnell, The

Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV.

1409 (1990). In my view, Professor McConnell's historical research clearly demon-strates that any textual ambiguity should be resolved in favor of the Sherbert pro-exemptions/compelling interest reading of the clause, and against the Smith reading.

8. Smith technically left some "exceptions" to its new rule that the Free

Exer-cise Clause affords no relief from the effects of generally applicable, facially neutral statutes, but nearly everybody agrees (friends and foes of Smith alike) that those exceptions are unprincipled or nonsensical and cannot be squared with the basic thrust of Smith. See generally Michael W. McConnell, Free Exercise Revisionism and

the Smith Decision, 57 U. Cm. L. REV. 1109 (1990); Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1; William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. CHI. L. REV. 308, 309 & n.3 (1991) (noting that Smith's "use of precedent borders on fiction" and citing as examples the Court's

pre-served exceptions to its new rule).

9. Pub. L. No. 103-141, § 2(b), § 3(a) & (b), 107 Stat. 1488-89; 42 U.S.C. §

2000bb(b), § 2000bb-l(a) & (b) (Supp. V 1993).

regulate the states qua states with a national religious freedom

statute that adopts a legal test rejected by the Supreme Court as

a matter of constitutional law? This is an important (and not

particularly easy) question of congressional power under Section

5 of the Fourteenth Amendment to change the content of

consti-tutional law enforced by the courts. The issue already has been

addressed by others (including some participants in this

sympo-sium).

10. See, e.g., Daniel 0. Conkle, The Religious Freedom Restoration Act: The Con-stitutional Significance of an Unconstitutional Statute, 56 MONT. L. REV. 39 (1995)

(arguing that RFRA exceeds Congress' constitutional power to enact, given Smith, but that Smith was wrongly decided); Ira C. Lupu, Of Time and the RFRA: A Lawyer's

Guide to the Religious Freedom Restoration Act, 56 MONT. L. REV. 171 (1995)

(argu-ing that RFRA should be given a narrow(argu-ing construction to reduce constitutional dif-ficulties).

Douglas Laycock has presented a strong argument for RFRA's validity as an exercise of congressional enforcement power under Section 5 of the Fourteenth Amendment, under current case law interpreting Section 5 and the analogous en-forcement sections of the Fifteenth Amendment. Douglas Laycock, The Religious

Freedom Restoration Act, 1993 B.Y.U. L. REV. 221, 245-54 (1993); see also Douglas

Laycock, RFRA, Congress, and the Ratchet, 56 MONT. L. REV. 145 (1995). The prob-lem is that that case law is not itself persuasive and that its unpersuasiveness is highlighted by RFRA: how can Congress be "enforc[ing]" Section 1 of the Fourteenth Amendment (the section that 'incorporates" the Free Exercise Clause) if the Supreme Court has held that Section 1 is not violated by the action that Congress seeks to prohibit?

The answer, I believe, requires a new theoretical defense of "the Morgan pow-er" (named for the case of Katzenbach v. Morgan, 384 U.S. 641 (1966)). Such a de-fense would be based on notions of the indeterminacy of legal language and the proper judicial role when confronted with indeterminate constitutional language: If the broad language of Section 1 of the Fourteenth Amendment admits of more than one legitimate interpretation, and Congress has acted pursuant to one of them, then the Court, because it cannot say that Congress' action was outside the bounds of legitimate congressional choice, cannot declare the act unconstitutional, even though the Court's (necessarily provisional) initial interpretation of the provision in question, made in the absence of congressional action, was to the contrary. In form, congressio-nal power to overrule the Court's default interpretations of the Fourteenth Amend-ment is similar to congressional power to overrule the Court's default interpretations of the Commerce Clause, as it has been thought to limit states' power to regulate commerce.

Thus, if the Free Exercise Clause (incorporated as one of the substantive privi-leges or immunities of citizens protected by the Fourteenth Amendment) is fairly subject to one of two constructions, the pre-Smith view and the Smith view-a propo-sition apparently supported by Smith itself, 494 U.S. at 878-Congress necessarily has constitutional power to "enforce" the former understanding. This theory has two surprising implications: First, it provides the most plausible defense of the otherwise unsupportable holding in Smith itself (and thus may offer the justices adhering to

Smith a face-saving way of affirming the propriety of both Smith and RFRA).

Sec-ond, it implies that Congress has the power to lessen the enforcement of what it deems "over-enforced" constitutional norms, where the indeterminate constitutional language interpreted by the Supreme Court is susceptible of more than one legiti-mate interpretation, and the Court has adopted the less "restrained" reading (e.g.,

While there is more that needs to be said about the Section

5 power issue, I would like to set that problem to one side for the

moment. I would like to address a different, hopefully easier, but

no less important aspect of RFRA: the applicability of RFRA to

trump laws enacted by the federal government.

There is no question of constitutional power here. Congress

possesses the same power to pass RFRA, as RFRA concerns

federal statutes, as it had to pass those other federal statutes in

the first place. If Congress had power to pass a statute to begin

with, Congress has power to modify it by enacting RFRA.

_'

And what an extraordinary modification of governmental

power it is! RFRA operates as a sweeping "super-statute,"

cut-ting across all other federal statutes (now and future, unless

specifically exempted) and modifying their reach. RFRA qualifies

Congress' regulations of commerce, of defense, of the post office,

of immigration, of bankruptcy, of federal lands, and so on.

When-the reverse of When-the Smith situation). I hope to develop this When-thesis in greater detail in a .subsequent article.

11. In her contribution to this symposium, Professor Joanne Brant offers the surprising argument that RFRA is unconstitutional because it directs the Court to do what it purportedly said in Smith it was beyond judicial competence to do: apply a "compelling interest' standard in free exercise cases. According to Brant, RFRA there-fore violates fundamental separation of powers principles. Joanne C. Brant, Taking

the Supreme Court at its Word: The Implications for RFRA and Separation of Pow-ers, 56 MONT. L. REV. 5 (1995).

With respect, I believe that Brant's theory is predicated on a severe over-read-ing of Smith on the "judicial competence" point. Smith is better read as a (purport-ed) exercise of judicial restraint. The Court retreated from the compelling interest test because it felt that it was improper for the judiciary to create such a test. That does not mean that it would be unconstitutional for the test to be enacted by stat-ute, as the Court itself seemed to concede: "[T]o say that a nondiscriminatory reli-gious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasion for its creation can be discerned by the courts." Smith, 494 U.S. at 890.

That Professor Brant's argument is an overreading of Smith is confirmed by the fact that Smith explicitly reaffirmed the validity of the Sherbert and Yoder cas-es-both of which applied the compelling interest test. Moreover, the test was ap-plied the very Term after Smith, in Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 113 S. Ct. 2217 (1993). If Smith rejected the compelling interest test on

the ground that courts are, as a matter of constitutional law, incompetent to apply such a test, then why did the Court leave intact its prior decisions in Sherbert and

Yoder and how could it have applied that test the next Term in Lukumi? Smith

merely narrowed the range of the compelling interest test's applicability; it did not hold the test "unconstitutional." In RFRA, Congress has done what many other such statutes have done: adopted a statutory standard for judicial application in cases of a certain description. RFRA employs a standard based on judicial decisions that the Court has since rejected, but this does not meaningfully distinguish RFRA from any of countless statutes where Congress has "restored" a legal test abandoned by the Court.

ever federal law, or the implementation of federal law,

sub-stantially burdens religious exercise, the federal government

must show that such burden is justified by a compelling

govern-mental interest and is the least restrictive means of

accomplish-ing that interest."

_{RFRA supersedes all prior federal law}

incon-sistent with its requirements." RFRA also trumps all

subse-quently enacted federal law, unless such laws explicitly exclude

application of RFRA.

RFRA is thus a powerful current running through the entire

landscape of the U.S. Code. My thesis in this Article concerns

the force of RFRA's current, and the depth of the channel it cuts,

through federal law-the meaning of the "compelling interest"

test as adopted by RFRA and as applied to free exercise claims

against the federal government. I do not here purport to offer a

comprehensive theory of the meaning of the term "compelling

governmental interest." Rather, I wish to offer just three modest

points about the meaning of the compelling interest standard,

directed primarily at what that test does not-and

can-not-mean.

First, a Government policy goal cannot properly be

consid-ered "compelling" (within the meaning of RFRA) where that goal

is not pursued uniformly with respect to all, or very nearly all,

analogous situations of nonreligious private conduct in which the

goal is implicated. If Government pursues a goal selectively or

partially, that goal is not so unqualifiedly compelling as to

over-ride a RFRA claim of religious exemption. If the goal is

subordi-nated to other policy interests, it must be subordisubordi-nated to the

free exercise of religion as well.

Second, and perhaps most importantly (and, one would

think, most obviously), a Government policy interest is not

"com-pelling" within the meaning of RFRA just because Government

says it is. That would permit institutional Government to opt out

of RFRA at will. Nonetheless, this was frequently the substance

of the Government's position in pre-Smith Free Exercise Clause

cases. The federal government often asserted a "compelling state

interest" simply by virtue of the fact that Congress had passed a

statute on the subject or that a particular executive branch

regu-lation or policy was ostensibly in furtherance of, or implemented,

12. Pub. L. No. 103-141, § 6(a), 107 Stat. at 1489; 42 U.S.C. § 2000bb-3(a) (Supp. V 1993) (emphasis added).

13. Pub. L. No. 103-141, § 3(b), 107 Stat. at 1488-89; 42 U.S.C. § 2000bb-l(b). 14. Pub. L. No. 103-141, § 6(a), 107 Stat. at 1489; 42 U.S.C. § 2000bb-3(a). 15. Pub. L. No. 103-141, § 6(b), 107 Stat. at 1489; 42 U.S.C. § 2000bb-3(b).

some statutory policy. Whatever the legitimacy of this gambit in Free Exercise Clause adjudication, it plainly has no place under RFRA. RFRA, by its own terms, cuts across and trumps other federal statutes and regulations.6 Moreover, RFRA specifies a mechanism whereby Congress may exempt some federal law or policy from RFRA's protections in the future-a mechanism, in short, for specifying that a particular interest is sufficiently com-pelling to override claims of religious exemption. A necessary implication, I submit, is that if Congress has not exempted some category of federal law from RFRA, the Government should not be heard to argue that its interest is compelling merely by virtue of the fact that it is embodied in a congressional statute or faith-fully implements the policies of that statute. Whatever else "com-pelling state interest" might mean-whatever the outer bound-aries of free exercise exemption under RFRA-it cannot mean that a given policy interest is per se "compelling" exactly to the extent pursued by some other federal statute and should conse-quently prevail over claims of religious exemption. One can no longer look to such statutes in isolation, for RFRA qualifies the entire U.S. Code.7

My third modest point is a specific instance of the second: Government-except perhaps in the most exceptional situa-tions-does not have a compelling interest in bureaucratic conve-nience or ease of administration. In particular, Government does not have a compelling interest in avoiding the costs of evaluating the sincerity of claims for religious exemption. RFRA necessarily rejects this position, simply by virtue of its enactment. RFRA re-quires Government accommodation of religion. In doing so, its standard compels an evaluation of burdens on religious exercise. It would be nonsensical for Government to then claim a compel-ling interest in avoidance of the bureaucratic or administrative costs of complying with the statute's accommodation mandate.

These three propositions might strike the casual observer as fairly obvious-perhaps so obvious as to border on the trivial. It might seem strange to think that Government might make the contrary arguments at all. But those familiar with the ratcheting-down of the compellingness of "compelling" interests in Free Exercise Clause cases prior to Smith are familiar with

16. Pub. L. No. 103-141, § 6(a), 107 Stat. at 1489; 42 U.S.C. § 2000bb-3(a).

17. Likewise, the Government should not be permitted to argue that the bal-ance struck by Congress or by executive branch bureaucrats is necessarily the "least restrictive means" of accomplishing a compelling interest simply because that is how Congress struck the balance.

the Government's (especially the federal government's) proclivity

to assert a "compelling" interest in statutory arrangements that

are not themselves consistent in their pursuit of that interest; in

its proclivity to assert that an interest is compelling simply

be-cause it is reflected in Congress' enactment of a statute within

its constitutional powers to enact; and in its proclivity to find

considerations of mere administrative convenience "compelling"

interests of the highest order. Moreover, courts often bought the

Government line: the late pre-Smith cases reflected broad

judi-cial deference to governmental assertions of compelling interest,

carving out huge areas of quasi-exemption from the (then)

consti-tutional protections of the Free Exercise Clause."

RFRA, I submit, does change all that. RFRA does not

"codi-fy" the late pre-Smith approach and is, in legal effect, far more

than a mere restoration of pre-Smith case law. It is a restoration

of the high-water mark of free exercise accommodation,

estab-lished by the cases of Sherbert v. Verner and Wisconsin v.

Yoder-cases specifically embraced in RFRA's "purposes"

sec-tion.

Moreover, given the super-statute provisions of section 6,

a failure to exempt a certain class of federal statutes or

regula-tions from the "compelling governmental interest" test of RFRA

is tantamount to congressional self-denial of the compellingness

of the federal government's interests in that context. The mere

fact that Congress has passed a law on the subject or struck a

balance in a particular way, or that it would be easier for federal

bureaucrats to administer the law without taking into account

the need to accommodate religious exercise on a case-by-case

basis, does not qualify as a compelling interest-even if it did

before, under pre-Smith, pre-RFRA case law interpreting the

Free Exercise Clause. In short, under RFRA, the arguments of

the federal government, and the reasoning of the courts in

ac-cepting those arguments, in cases such as United States v.

Lee,

" Goldman v. Weinberger," Bowen v. Roy,

and

Hernandez v. Commissioner

-all cases involving Free Exercise

Clause claims for exemption from some requirement of federal

law-are not "good law" as they concern the meaning of the term

"compelling governmental interest" in RFRA.

18. See infra notes 20-23.

19. Pub. L. No. 103-141, § 2(b), 107 Stat. at 1488; 42 U.S.C. § 2000bb(b). 20. 455 U.S. 252 (1982).

21. 475 U.S. 503 (1986). 22. 476 U.S. 693 (1986). 23. 490 U.S. 680 (1989).

Try telling that to the Justice Department. In a case cur-rently pending before the Eighth Circuit, Christians v. Crystal Evangelical Free Church, the federal government made its first abortive foray into the issues of interpretation presented by RFRA. Crystal Evangelical is the first case at the federal appel-late level to raise issues of RFRA's interpretation as RFRA af-fects another federal statute. Barely skipping a beat from its pre-RFRA positions, the Department once again came down against a religious freedom claimant. I will use Crystal Evangelical as my vehicle for introducing the discussion of how RFRA cuts across and alters the landscape of other federal statutes, and to use the Justice Department's horrendous brief as a foil for my three observations about "compelling interest" under RFRA-each of which the Justice Department's brief explicitly or implicitly controverts.

In an extraordinary move on the eve of oral argument in Crystal Evangelical (just two weeks before this symposium), the Department of Justice was overruled by President Clinton him-self, who (according to press reports) believed that the Department's brief took a narrower view of RFRA than Clinton himself thought appropriate when he signed RFRA into law in November of 1993. In a one-sentence letter faxed to the Eighth Circuit, the Department of Justice announced that it was withdrawing its brief in intervention in the Crystal Evangelical case. The lawsuit between the parties, of course, continues to go forward. But the Clinton Administration has stepped back. The occasion of that stepping back may provide an appropriate time for reconsideration of the meaning of the elusive term "compel-ling governmental interest."

Part II of this Article tells, in brief, the story of the Chris-tians v. Crystal Evangelical Free Church case (to date), setting forth that case as a paradigm for consideration of the issues of interpretation posed by RFRA, and as a paradigm of Government hostility to free exercise claims. Part III explores the meaning of "compelling interest," developing the three modest points I have just sketched. Part IV drives home the larger insight to which

these three smaller insights point: that RFRA restores the "high water" mark of protection for free exercise, established in Sherbert and Wisconsin v. Yoder', not the watered-down, just-about-anything-you-can-name-is-compelling approach of late pre-Smith free exercise jurisprudence. In reaching this conclusion, I

24. 406 U.S. 205 (1972).

address and respond to the arguments that might be made for a

watered-down reading of RFRA. Finally, Part V concludes with

some institutional solutions for the institutional problem of

sys-temic bureaucratic hostility to free exercise claims. If President

Clinton is serious about RFRA, he must give RFRA serious

insti-tutional status within the Justice Department.

II. CHRISTIANS V. CRYSTAL EVANGELICAL

The ironically-captioned Christians v. Crystal Evangelical

Free Church case seems to pit "Christians" against a church.

Julia Christians, the nominal plaintiff, is a U.S. Bankruptcy

Trustee appointed to represent the interests of creditors of the

personal bankruptcy estate of Bruce and Nancy Young. The

Youngs are members of Crystal Evangelical Free Church, a large

protestant congregation in a Minneapolis suburb. The trustee

brought suit against the Church on behalf of creditors, pursuant

to section 548(a)(2) of the Bankruptcy Code, to recover the

amount that the Youngs had given to the Church as religious

tithes during the year prior to their filing for bankruptcy. The

trustee argued that such tithes constituted a "fraudulent

trans-fer" within the meaning of section 548. Nobody disputes that the

Youngs' tithes were given as a sincere exercise of their religious

faith, and not for any purpose of eluding or defrauding creditors.

Section 548(a)(2), however, is a flat prophylactic rule that

autho-rizes suits to recover funds given by the bankrupt to third

par-ties, during the period of insolvency, for which the bankrupt did

not receive sufficient "value" in exchange. Where there is

insuffi-cient "value," there is deemed to be a "fraudulent transfer."

25. 11 U.S.C. § 548 (1988) provides in pertinent part:

(a) The trustee may avoid any transfer of an interest of the debtor in prop-erty, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or

involuntarily-(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and

(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation ....

Actual fraud is not required to show a "fraudulent transfer" under section 548(a)(2). Actual fraud is covered under section 548(a)(1).

The Church has argued that contributions to a church confer "value" on the contributors, even though there is no requirement of tithing as a condition of church membership or access to any of its services. Both the bankruptcy court and the dis-trict court rejected this argument. Christians v. Crystal Evangelical Free Church (In

The Church defended on the ground (among others) that

application of section 548(a)(2) to invalidate sincere religious

tithing would violate the Free Exercise Clause rights of the

Church and of its members, the Youngs (whose interests the

Church had third-party standing to assert as a defense to the

proceeding against the Church). The constitutional defense was

made quite a bit more difficult by Employment Division v.

Smith,

of course. In form, the Church's claim was one for

ex-emption from a rule of general applicability not targeted at

reli-gious exercise per se. Smith held that such formally neutral

requirements of law are not subject to the "strict scrutiny"

stan-dard formerly applied in Free Exercise Clause adjudication

(un-der the Court's 1963 decision in Sherbert v. Verner

). The

Church tried to squeeze the case into one of the exceptions

recog-nized by Smith to its new rule-statutes (like that at issue in

Sherbert itself) that provide for "individualized governmental

as-sessment" of particular circumstances.' In a sense, the whole

process of reorganization of liquidation under the Bankruptcy

Code is one of tailoring general requirements to individualized

circumstances, complete with a multitude of provisions for

mak-ing individualized accommodations to particular

circumstanc-es.

There is thus a good argument that the application to

par-re Young), 152 B.R. 939 (D. Minn. 1993), affg 148 B.R. 886 (Bankr. D. Minn. 1992). As a matter of pure statutory interpretation of section 548(a)(2), the Church's posi-tion is weak, though there is at least a colorable argument that this situaposi-tion falls within the rule of NLRB v. Catholic Bishop, which holds that where a federal stat-ute presents a significant risk of impairment of religious liberty, Congress should not be understood as having intended such a result unless it has manifested an "affirma-tive intention" to include religious conduct and that intention has been "clearly ex-pressed." 440 U.S. 490, 500-01, 504 (1979). There is no such affirmative intention clearly expressed in the bankruptcy laws, and Congress likely did not contemplate that section 548(a)(2) would be applied to invalidate sincere religious tithes to a church in the year prior to bankruptcy.

26. 494 U.S. 872 (1990).

27. 374 U.S. 398 (1963).

28. Smith, 494 U.S. at 884; accord Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 113 S. Ct. 2217, 2229 (1993) (quoting Smith).

29. Section 522 of the Bankruptcy Codes authorizes a myriad of exemptions to the claims of creditors: a debtor's home, life insurance policies, business tools or machinery, personal goods (up to a certain amount), and a great many other items of property purchased by the debtor. Under the Minnesota statutory exemptions (made applicable at the debtor's election by section 522(b)(1) of the federal Bankruptcy Code), a debtor's home is exempt without value limitation, so that an individual facing bankruptcy can place funds beyond creditors' reach by putting the money into her home (or buying a more expensive one). Farm machinery and implements are exempt up to $13,000 in value. Other business tools, machines, or instruments are exempt up to $7,500. Clothing, furniture, and appliances (including stereos and

ticular cases of the Bankruptcy Code's complex scheme of exemp-tions fits within the "individualized governmental assessment" exception recognized in Smith," and that the compelling inter-est tinter-est of Sherbert v. Verner"1 therefore applies.

Getting the benefit of the compelling interest test was cru-cial to the Church's position. If there need only be a "rational basis" supporting the distinctions drawn in the Bankruptcy Code, the Church probably loses. The interest in protecting credi-tors, even if not uniformly pursued throughout the Bankruptcy Code, is at least rational, even if it is not compelling. On the other hand, if application of section 548(a)(2) to invalidate the Youngs' tithes to Crystal Evangelical requires a compelling inter-est that can be attained by no less rinter-estrictive means, the Church probably wins. The interest in giving creditors a larger percent-age on the dollar is real, but not compelling. The fact that the Bankruptcy Code does not uniformly pursue the interest in max-imizing creditors' receipts shows that that interest is something less than compelling, but is in fact subordinated to other policies, such as giving debtors some scope of freedom to make non-neces-sity purchases of their own choice. To treat religious expendi-tures as less protected than other personal expendiexpendi-tures would seem to stand the value of religious freedom on its head. One could speculate that the government has a compelling interest in preventing fraud by debtors, but such interests have never been held sufficient to justify a prophylactic rule embracing conced-edly sincere religious conduct.32 Besides, a different provision of the Bankruptcy Code, section 548(a)(1), specifically addresses the situation of actual fraud. Section 548(a)(2), the provision under which the trustee sued in this case, is essentially a legal fiction about constructive "fraud." The whole question of the case is whether such a bright-line prophylactic rule is the least restric-tive means of accomplishing some compelling governmental in-terest. There would seem to be no compelling interest supporting the bright-line rule that is not already adequately served by another aspect of the Code.

many other personal expenditures, such as a car.

Thus, if the Youngs had used the equivalent sum of money they tithed to their church-approximately $13,000-to buy down their mortgage, purchase a trac-tor, buy some expensive clothes, or buy a big-screen TV set with "Surround Sound" speakers, the trustee could not have touched those transactions.

30. 494 U.S. at 884.

31. 374 U.S. 398 (1963).

32. See Sherbert, 374 U.S. at 407; see infra text accompanying notes 83-85.

The Church lost in both the Bankruptcy Court (where the First Amendment argument had not been made) and in the Dis-trict Court (where it had). The case was fully briefed and ready for oral argument in the Eighth Circuit when Congress passed the Religious Freedom Restoration Act, which explicitly man-dates application of the compelling interest standard.3 3 RFRA was manna from heaven, as far as the Church was concerned. What had before been a difficult and cumbersome argument of finding an exception to Smith had become a straightforward argument of applying a fairly clear federal civil rights statute that specified that its provisions overrode other federal law.

Enter the Justice Department with the first official, public, U.S. Government interpretation of RFRA. The Justice Depart-ment argued (with respect to both the Church's constitutional argument and its RFRA argument) that, first, application of section 548(a)(2) imposed no cognizable "burden" on religious ex-ercise because Bruce and Nancy Young were giving money to the Church that was not "theirs to give."' The Department analogized the Youngs' act of tithing to the act of drug kingpins using proceeds of narcotics transactions to hire high-priced drug lawyers to defend them. The Department quoted Caplin & Drysdale, Chartered v. United States for the proposition that "[there is no constitutional principle that gives one person the right to give another's property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right."' Second, the De-partment argued that even if application of section 548(a)(2) to

33. There might be some question whether RFRA applies "retroactively" to cases begun prior to RFRA's enactment. Cf Landgraf v. USI Film Products, 114 S.Ct. 1483 (1994). Though the issue is not free from doubt, the better view is probably that RFRA does apply to such cases. Unlike the Civil Rights Act of 1991, at issue in

Landgraf, section 6(a) of RFRA is as close as one can get to an express "retroactivi-ty" provision without using the magic words that Landgraf suggests. Section 6(a) provides that RFRA "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [No-vember 16, 1993]." Pub. L. No. 103-141, § 6(a), 107 Stat. at 1489; 42 U.S.C. § 2000bb-3(a). Because RFRA governs with respect to all "implementation" of federal law-that is, applications of statutes as well as the statutes themselves-it should be understood as governing appellate cases that have not reached a final disposition. In

Crystal Evangelical, for example, there has been no completed application of section

548(a)(2). The whole question in Crystal Evangelical is whether section 548(a)(2) may be applied in such a manner. There has not been (as there was in Landgra/) any prior transaction based on prior law to invalidate.

34. Brief for Intervenor the United States at 30, Crystal Evangelical (No.

93-2267) (withdrawn).

35. Id. at 13 (quoting Caplin & Drysdale, 491 U.S. 617, 628 (1989)).

invalidate the Youngs' tithes did burden religious exercise, there

is a compelling interest in "protecting the property of others.

"

The Department's contention, that a compelling interest justifies

any burden, builds on the same Caplinesque premise that the

Youngs were tithing with money that was not theirs to give.

The Department's characterization of the Youngs' conduct as

not involving any legitimate exercise of religion is wooden and

insensitive in the extreme.

It is only because section 548 of

the Bankruptcy Code sometimes permits retroactive invalidation

of transactions that it became remotely plausible for the

Depart-ment of Justice, in retrospect, to characterize sincere religious

tithing as giving away, in the Department's words, "another

person's property." Even if the characterization has some

superfi-cial appeal, it is quite simply wrong as a matter of bankruptcy

law. Unsecured creditors have no "property" right in a debtor's

estate; rather, debtors have unsatisfied personal obligations to

creditors. The "property" is still the debtor's.

Thus, the

government's highly offensive analogy to forfeiture of drug

dealers' ill-gotten gains is totally inappropriate.

I do not want to dwell further on the Justice Department's

"burden" point (in part because I regard it as so very nearly

absurd as not to merit extended discussion). Rather, I want to

focus on its "compelling interest" point, which provides more

fertile ground for discussion and more general lessons for

RFRA's interpretation. We can learn, by the government's bad

36. Brief for Intervenor the United States at 12, 32.

37. No one disputes that the Youngs' practice of tithing on their income

stream-a practice engaged in consistently over a period of many years-was

any-thing other than a sincere exercise of a profound religious conviction and discipline. At the time they were tithing, the Youngs were acting in complete good faith (so to speak). Giving one-tenth of their gross income to God was, as a matter of the Youngs' religious faith, their first financial obligation. As matters turned out, their other financial commitments outran their income and they ultimately had to file for bankruptcy. The record does not reflect it, but according to press reports Bruce Young suffered a heart attack that led to a near-shutdown of the Youngs' construc-tion business during a period of economic recession. The Youngs depleted numerous other personal assets before filing bankruptcy-assets that would have been exempt from the reach of their creditors if the Youngs had filed bankruptcy earlier. Laurie Goodstein, Religious Groups Fight U.S. in Bankruptcy Case, WASHINGTON POST, May

23, 1994, at Al.

38. This point is developed at length in the amicus brief of Christian Legal So-ciety, et al. (Response to Brief of Intervenor United States of America by Christian Legal Society, at 2-10). I was one of the attorneys for this coalition of amici, but Douglas Laycock was the author of our last brief (responding to the Justice Depart-ment position) and should be credited for the many insights therein about the char-acter of bankruptcy law and the absence of any "property" rights by unsecured credi-tors.

example in Crystal Evangelical, just what "compelling interest" does not mean under RFRA.

III. THE MEANING OF "COMPELLING INTEREST" UNDER RFRA:

THREE MODEST POINTS

Section 2 of RFRA specifies that the purpose of the Act is:

to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.9

The emphasized words are important. The "compelling interest" test employed in section 3 of the Act is intended to track the test employed in Sherbert and Yoder, replicating the broad protection of religious free exercise recognized in those two cases. This is significant because, as we shall see, later Supreme Court deci-sions (not similarly embraced by RFRA) watered down the "compellingness" of what it takes to be a compelling interest."

As formulated and applied in Sherbert and Yoder, the test is an extremely rigorous one, referring to an extremely narrow range of permissible justifications for infringements on religious liberty. Not every legitimate, or even very important, interest of government qualifies. Only interests "of the highest order" and "not otherwise served" qualify, in the words of Yoder.4_' Sherbert's words are even more strict: Only "the gravest abuses, endangering paramount interests, give occasion for permissible limitation" of religious exercise.42

What is a "paramount" government interest and how do you

39. Pub. L. No. 103-141, § 2(b)(1), 107 Stat. at 1488; 42 U.S.C. § 2000bb(b)(1) (Supp. V 1993) (emphasis added).

40. I address below the argument that Congress intended to adopt the

watered-down approach of subsequent cases, rather than the rigorous version of the compel-ling interest test set forth in Sherbert and Yoder. See infra text accompanying notes

105-16. Suffice it to say here that section 2 of RFRA, which specifies RFRA's

"pur-poses," at the very least establishes a powerful presumption that the test "as set forth in" Sherbert and Yoder is at least as stringent as needed to produce the out-comes in those two cases (which, even under Smith, remain good law and therefore constitute a "floor" beneath which Congress presumably did not intend for RFRA to sink). The arguments set forth infra will also tend to show that the simple fact of RFRA's enactment, with its super-statute provisions, entails a rejection of the Court's late pre-Smith pattern of blind deference to interests reflected in federal statutes or claims of federal agencies.

41. 406 U.S. at 215.

42. 374 U.S. at 406 (emphasis added) (original quotation marks and citations omitted).

know one when you see one? This question has dogged the

Su-preme Court's Free Exercise Clause jurisprudence for decades

and challenged commentators for the same time. I will not

pre-tend to offer a comprehensive answer here. Instead, I offer some

minimalist insights into what a paramount, or compelling,

gov-ernment interest is not.

A. A Governmental Interest Does Not Qualify as "Compelling"

Within the Meaning of RFRA Where It Is Not Uniformly

Pursued With Respect to All Situations of the Same Category

First and most clearly, an interest cannot be "compelling"

where government fails to uniformly pursue that interest

wher-ever it arises, but only pursues it occasionally, sporadically, or

inconsistently. The lack of systematic pursuit belies the assertion

of compelling importance.

In the free speech context, a statute treading on expression

is unconstitutionally "overnarrow" if the government does not

pursue its assertedly compelling justification in other contexts

not presenting the same interference with expression.

_The

Su-preme Court expressly embraced this principle, in the

constitu-tional free exercise context, in Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah," decided in 1993. Lukumi involved a

Free Exercise Clause challenge to the constitutionality of a group

of municipal ordinances that effectively prohibited the killing of

certain animals, but only when the killing was done for religious

purposes. The Court applied the compelling interest test because

it found that the ordinances intentionally targeted religious

conduct (and therefore did not fall within Smith's rule

concern-ing genuinely neutral, generally applicable laws). The Court

rejected the City's assertions of compelling interests in public

health, sanitation, and order, relying in large part on the many

exemptions from the prohibition provided by the overall

statuto-ry scheme. Embracing the language of Justice Scalia's

concur-43. See generally MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT, §2.06(B), at 2-94 (1984). See,

e.g., The Florida Star v. B.J.F., 491 U.S. 524, 540-41 (1989); Minneapolis Star &

Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983). See also Michael Stokes Paulsen & Michael W. McConnell, The Doubtful Constitutionality of

the Clinic Access Bill, 1 VA. J. SOC. POL'Y & L. 261, 283 (1994) (criticizing proposed

Freedom of Access to Clinic Entrances Act on the ground that it singles out for spe-cial punishment unlawful protests addressed to certain subjects only, and is therefore content and viewpoint discriminatory).

44. 113 S. Ct. 2217 (1993).

rence (and the approach of the full Court) in The Florida Star

v.

B.J.F., a free speech/free press case holding that Florida's rape

victim shield statute is unconstitutional,

_{the Court in Lukumi}

wrote:

Where government restricts only conduct protected by the First

Amendment and fails to enact feasible measures to restrict

other conduct producing substantial harm or alleged harm of

the same sort, the interest given in justification of the

restric-tion is not compelling. It is established in our strict scrutiny jurisprudence that "a law cannot be regarded as protecting an interest 'of the highest order'. . . when it leaves appreciable damage to that supposedly vital interest unprohibited." The Florida Star v. B.J.F., supra, 491 U.S. [524], at 541-542...

(Scalia, J., concurring in part and concurring in judgment)

(citation omitted [by Court]

It is, of course, unclear whether Congress in enacting RFRA

consciously understood "compelling interest" to embrace this

principle. Lukumi, B.J.F., and other cases applying this principle

as part of strict scrutiny jurisprudence were before Congress at

the time RFRA was adopted. However, as I will argue below, it

is a perilous enterprise to ascribe to Congress, absent a clear

statement to such effect, an intention to "incorporate by

refer-ence" particular applications of prior legal standards (as opposed

to general principles) merely because the legal standard

em-ployed in the prior cases is subsequently adopted as a legal term

of art for a statute. Sherbert and Yoder are the only two cases

specifically embraced by RFRA. Lukumi and B.J.F., however, are

persuasive statements concerning the boundaries of government

assertions of "compelling interest" under RFRA, not simply

cause they existed as cases prior to RFRA's adoption, but

be-cause they make concrete sense of Sherbert's and Yoder's

com-mand that a state interest must be one "of the highest order,"

"paramount," and "not otherwise served." Moreover, the principle

of Lukumi and B.J.F. (that an asserted interest is not compelling

if not generally pursued) is not one that is substantially

contro-verted by courts or commentators.

That principle is controverted, however (albeit not in very

straightforward terms), by the Department of Justice's brief in

Christians v. Crystal Evangelical Free Church. As noted above,

the Church and its amici argued that the policy of maximizing

45. 491 U.S. 524, 541 (1989).

46. 113 S. Ct. at 2234 (emphasis added).

creditors' economic returns, even if important as a general propo-sition, is not "compelling" in either the constitutional sense or the sense in which RFRA uses the term, because it is not uni-formly pursued but is instead subordinated repeatedly to other ordinary policy interests, as illustrated by the Bankruptcy Code's myriad exemptions.47 The Justice Department's response was that "[siection 548's religious neutrality is properly evaluated only by considering that [slection alone."4 8 _{In the wake of}

Lukumi, this cavalier response is little short of incredible. In essence, the Department argued that courts should evaluate the compellingness of the state's interest without even looking at the myriad ways in which the statutory scheme "leaves appreciable damage to that supposedly vital interest unprohibited."49

The government's position may be mildly incredible, but it is not at all atypical. Throughout the 1980s, the Department of Justice took the view in Free Exercise Clause cases that a gov-ernment interest is "compelling" even though not consistently pursued within the relevant statutory scheme.

United States v. Lee5" is the leading exhibit in this category. Lee involved a challenge by a member of the Old Order Amish to mandatory participation in the social security system. The Amish community to which Edwin Lee belonged had a well developed system of providing for their own elderly and infirm and objected on sincere religious grounds to paying social security taxes. Lee would seem to have had a good claim in light of Yoder. The De-partment of Justice, however, argued that the government had a compelling interest "in maintaining widespread participation in the social security program" and that "[tihe government's ability to maintain a comprehensive social security program for the nation's unemployed and senior citizens would be severely strained if all those who could provide for themselves, either by individual or community efforts, could voluntarily withdraw from the program."5'

The Government's position sounds plausible enough, but there is something fishy about it. Given that the relief sought by Mr. Lee was simply a personal exemption from the usual require-ment because of a conflict with religious obligation-not nullifi-cation of social security taxes for everyone--the Government

47. See supra note 29 and accompanying text.

48. Brief for Intervenor the United States at 38.

49. Lukumi, 113 S. Ct. at 2234 (original quotation marks and citations omitted).

50. 455 U.S. 252 (1982).

51. Brief for the United States at 11, Lee (No. 80-767).

could surely exempt the Amish and still maintain "widespread"

participation in the social security system. If the compelling

interest is widespread participation, exemption of the Amish

(and others similarly situated) is not much of a threat to it. On

the other hand, if the compelling interest is uniform

participa-tion (at least in the taxaparticipa-tion part if not in the benefits part-as

other parts of the Department's brief suggest),

_{then the}

Department's position in Lee comes squarely up against the

underinclusiveness problem, for Congress had consciously

ex-empted the Amish from the alternative self-employment social

security tax. True, Congress had exempted self-employed Amish

but not Amish employers. But how could the federal

government's interest in mandatory participation be thought so

compelling as to override conflicting Amish beliefs, where the

government did not always pursue that interest, and where its

decision not to pursue that interest was premised on the fact

that doing so would conflict with Amish beliefs?

The Department of Justice argued that Congress was under

no constitutional compulsion to adopt the self-employment

ac-commodation in the first place.

" Perhaps true.

But that is

not responsive to the point, which is that the government's

asser-tion of a compelling interest in mandatory, uniform participaasser-tion

is belied by the failure of the government to pursue that interest

consistently in closely analogous circumstances. Had the

govern-ment pursued that interest uniformly, Lee might have been a

different case-one in which the government's assertion of a

compelling interest might be believable, and thus have to be

weighed on its merits. But the assertion of a compelling interest

in uniform enforcement of the social security regime was

implau-sible in the face of the statutory scheme as it actually existed.

52. Id. at 11, 27.

53. Id. at 12, 14, 29-37.

54. Perhaps not, at least under pre-Smith standards. If a "compelling" inter-est-an implied, atextual exception to a seemingly absolutist text (cf Douglas Laycock, The Religious Freedom Restoration Act, 1993 B.Y.U. L. REV. 221, 233)-must be one of truly overriding social importance because of its necessity to preserve the health, safety, or well-being of the community as a whole, inclusion of self-employed Amish farmers in the social security system scarcely qualifies.

55. The Supreme Court accepted the government's position in United States v.

Lee. "[Miandatory participation is indispensable to the fiscal vitality of the social

security system . . . . Thus, the government's interest in assuring mandatory and continuous participation in and contribution to the social security system is very high." 455 U.S. at 258-59.

In the same passage, the Court embraced the government's argument from administrative convenience: "Moreover, a comprehensive national social security

So too with the Supreme Court's outrageous 1989 decision in Hernandez v. Commissioner.5 6 At issue in Hernandez was the deductibility of religious contributions to the Church of Scientology for Church "auditing" (religious training) sessions. The IRS disallowed such deductions pursuant to a regula-tion-an executive branch interpretation of the tax statutes, not the statutes themselves-holding that a contribution is not a true "gift" if there is some quid pro quo. The government, relying on Lee, took the position that the soundness of the tax system depends on the government's ability to apply the tax law in a uniform and evenhanded fashion.5 7 But the evidence was clear that the government did not take this position with respect to

analogous practices-including analogous religious

practic-es-such as "pew rents" or sales of tickets for Jewish High Holy Day services. The IRS had a formal written policy stating that those contributions were deductible.58 _{Yet the "quid pro quo"}

feature of these contributions is indistinguishable from the ar-rangement in Hernandez, as Justice O'Connor's dissent rightly pointed out.9 Inconsistency of the policy should have belied the assertion of a compelling interest in "maintaining a sound tax system," free from "myriad exceptions."' Indeed, Hernandez seems to be a blatant case of discrimination among religions.

The government's ostensibly compelling interest in uniformi-ty is illustrated most literally in Goldman v. Weinberger,"' where the Court upheld the dishonorable discharge of a Jewish Air Force Captain for his refusal to doff his non-uniform "head-gear"-to wit, a yarmulke. The record showed that Captain Goldman had served as a Navy chaplain for many years (wear-ing his yarmulke the whole time), returned to the military as an Air Force clinical psychologist following completion of a Ph.D.,

tem providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer." Id. at 258. The Supreme Court also thought that social security taxes are indistinguishable in principle from any other tax, and that we simply cannot have individuals making free exercise claims to ex-emption from taxes. Id. at 260. 1 will address the administrative convenience and "slippery slope" points in Lee below. See infra text accompanying notes 89-92.

56. 490 U.S. 680 (1989).

57. Brief for the Respondent at 47-49, Hernandez (Nos. 87-963 & 87-1616).

58. 490 U.S. at 701 ("Pew rents, building fund assessments, and periodic dues paid to a church . . . are all methods of making contributions to the church, and such payments are deductible as charitable contributions within the limitations set out in section 170 of the Code.") (quoting Rev. Rul. 70-47, 1970-1 C.B. 49)).

59. Id. at 706-710 (O'Connor, J., dissenting).

60. Id. at 699 (quoting United States v. Lee, 455 U.S. at 260). 61. 475 U.S. 503 (1986).